Catholic Medical Quarterly Volume 72(1) February 2022

Papers

Advance Statements and Lasting Powers of Attorney:
a new opportunity to express your wishes

Dr Adrian Treloar

The Mental Capacity Act was passed in Parliament in 2005. It was (and is) clearly seen as a vehicle for poor care and euthanasia. Members of the CMA, along with others, worked hard to point out the dangers of Advanced Decisions to Refuse Treatment (ADRTs) [1,2]. Interestingly, as a personal observation, few of my colleagues in the medical profession were worried about Advance Refusals until the Act came into effect. At that point, among colleagues, it became perceived wisdom the ADRTs were prone to being problematic and triggering poor care etc. Happily, the constraints upon their validity and applicability which we had argued for have been hugely helpful in enabling the sick to be protected against such dysfunctional ADRTs.

As a simple example, if an ADRT refuses all but symptomatic care in someone who has lost capacity due to dementia, then it may be illegal to treat a urine infection. And yet the patient will not die, they will merely suffer far more as a result of the inability of doctors to treat their infection effectively. UNLESS, that doctor understands both the limitations of ADRTs in terms of their validity and applicability as set out in the Act and that it is therefore right to ignore ADRTs which are invalid or inapplicable and also unhelpful to the patient.

More problematic is the issue of Best Interests. These have turned out to be hugely subvertible. It was said that Tony Bland had no best interests. In the Court of Appeal re Alfie Evans, Lord Justice McFarlane was explicit in his characterisation of the case, saying that the judge has concluded ‘it is not in the best interests of the individual to carry on living’.[3] As Michael Wee commented “That is polite-speak for ‘better off dead’”.[4] Best Interests are in fact very subvertible and there is real concern that the Mental Capacity Act can be used to enable poor care including starvation and dehydration [5].

While ADRTs were made legally binding in the Capacity Act, Advance Statements of wishes and preferences were not made binding. In English Law therefore, you cannot require people to offer you food or water when you have lost capacity, you can merely ask for it. While an Advanced Refusal of antibiotics would be binding, and Advance Request wold not.

Similarly, while the Act created the ability to appoint decision making attorneys (Lasting Powers of Attorney) the key power of those attorneys is to refuse treatment. They can ask for treatment and care, but cannot require it. And if they are deemed not to be acting in the best interests of the patient, that power may be removed.

On the other hand, in any statement we make, we are bound to be balanced. Catholic Teaching is not vitalist. We are called to cherish life while accepting our earthly mortality. Therefore, we should not simply demand treatment in the face of inevitably terminal illness. This statement of wishes clearly seeks to reach that balance.

In any statement we make, we are bound to be balanced. Catholic Teaching is not vitalist

So it is a very welcome development, that guidance has been produced on what you might say when you are completing a Lasting Power of Attorney for Health. It is clearly very important to know what to say. And that advice should be authorative and carry real weight when it is needed and relevant. The Guidance has been published by SPUC and is reproduced in this journal [6].

It is, we think, an important development helping people to protect themselves in their future infirmities. Please look at the document which we are publishing here and on our website as an ongoing resource .

References

  1. Submission from the Joint Ethico-Medical Committee Of The Catholic Union of Great Britain and the Guild of Catholic Doctors to The Scrutinising Committee on The Draft Mental Incapacity Bill 2003 http://www.cmq.org.uk/Submissions/draft_MIB_submis-sion.html
  2. Taylor Philippa, (2010) Do Advance Decisions advance Euthanasia? Catholic Medical Quarterly, May 2010, 60: (2). www.cmq.org.uk/CMQ/2010/May/do_advance_decisions_advance_eut.html
  3. Thomas Evans v Alder Hey Trust [2018] EWCA Civ 964 [32].
  4. Wee, Michael. (2019) The Alfie Evans case: How not to apply Catholic teaching on withdrawing life-sustaining treat-ment . Catholic Medical Quarterly Volume 69(1) February 2019, 13-15 www.cmq.org.uk/CMQ/2019/Feb/alfie_evans_case.html
  5. Treloar A, Cole A, (2019). Would you refuse a dying man water? Concerns about the working of the Mental Capacity Act. Catholic Medical Quarterly Volume 69(2) May 2019, 13-16 www.cmq.org.uk/CMQ/2019/May/would_you_refuse_dying _man_water.html
  6. Statement of my instructions in the event of my becoming mentally incapacitated. Pub SPUC Sept 2021.  https://www.spuc.org.uk/Portals/0/Repository/SPUC%20-%20Statement%20of%20Instructions_A5_8pp_web%20(1).c35c53ed-ab1c-471a-babc-bd2378b04ff5.pdf
    and in this issue Catholic Medical Quarterly (2022) Volume 72(1) February 2022, 19-20